Puna Mahton and Others vs Emperor

Courtney-Terrell, C.J.—This is petition for the revision of an order by the Sessions Judge of Patna summarily dismissing an appeal from a First Class Magistrate convicting the petitioners in the following circumstances. A decree had been obtained in the civil Court against the petitioner Puna Mahton and the successful judgment creditor proceeded to execute it. The executing Court purporting to act under Order 21, Rule 37, Civil P.C., took an unusual course. That rule is as follows:

(1) Not with standing anything in these rules where an application is for the execution of a decree for the payment of money by the arrest and detention in the civil prison of a judgment-debtor who is liable to be arrested in pursuance of the application the Court may instead of issuing a warrant for his arrest issue a notice calling upon him to appear before the Court on a day to be specified in the notice and show cause why he should not be committed to the civil prison.

(2) Where appearance is not made in obedience to the notice the Court shall if the decree-holder so requires issue a warrant for arrest of the judgment-debtor.

Under this rule it is clear that the Court, on the application of the judgment-creditor for execution may choose between two alternative courses. It may (a) issue a notice upon the debtor to show cause why he should not be committed to prison or (b) it may issue a warrant for his arrest. Moreover under para. (2) if the first course be taken and the debtor does not appear and also if the decree-holder so requires a warrant may be issued for the arrest of the debtor.

In this case the Court issued to two peons both a notice to the debtor to appear and also a warrant for his arrest. It was clearly intended and the peons also so understood their instructions that the debtor should first be served with the notice and if he should intimate in any way that he had no intention of complying with it that the peons should then make use of warrant of arrest. In my opinion the Court in so acting took a wrong course. The service of a notice by a peon gives to the debtor an opportunity within the time fixed by the notice to appear before the Court. He may possibly intimate his intention not to appear but on the other hand he may within the time fixed by the notice repent of his action and decide to appear. Furthermore there is the possibility that even if he should appear the decree-holder may repent of his severity and may not ask the Court to effect the arrest of the debtor. It must be borne in mind that the Court has jurisdiction to adopt either course permitted by the rule but having decided to issue a notice it should not have deprived the judgment-debtor of the opportunity which the notice affords him. In other words the Court exercised its discretion to issue the warrant of arrest in an entirely unjudicial manner.

Nevertheless it is not contended in this case that the Court had no jurisdiction to issue a warrant of arrest and it is not contended that the warrant of arrest was defective in form nor that peons in executing the warrant did anything more than the duties imposed upon them by the warrant nor that they acted otherwise than in good faith. They offered the notice to the petitioner Puna Mahton which he declined to receive. It cannot be disputed that the notice was nonetheless properly served and effective in law nor that Puna Mahton was bound in accordance with the notice to appear before the Court on the day named in the notice. The peons then proceeded to execute the warrant. They seized Puna who aked his labourers to run and inform his people. Puna resisted the arrest by sitting down and refusing to move.

The other two petitioners Gajadhar and Lachhman came with a number of persons and pushed the two peons aside whereupon Puna also forcibly pulled himself free of their grasp. Puna was convicted u/s 225-B, I. P.C., and fined Rs. 200 or in default rigorous imprisonment for four months. Gajadhar and Lachhman were convicted under Sections 353 and 225-B and sentenced to a similar penalty. The appellant confined their defence to a denial of the facts alleged by the prosecution and on appeal took a similar course. In this Court however Mr. Baldeo Sahay has on their behalf confined himself to the legal argument that the arrest by the peons was unlawful and that the conduct of the petitioners therefore amounts to no offence in law.

Now a great number of cases have been decided upon the effect of the two sections in question and Section 186, I. P.C., and much learning has been devoted to a consideration of what is meant by such phrases as "a public servant in discharge of his public function," "lawful apprehension," "lawful detention" and "execution of his duty as a public servant." I do not propose to review in detail this long series of cases. I was at first somewhat puzzled by their number and apparent conflict but upon examination I find that in the great majority the public officer to whom resistance or violence was offered was armed with an authority which was defective in form or he exceeded the powers given to him by the authority when the authority itself was not defective.

The last case decided in this Court on this point, was that of Badri Gope and Others Vs. Emperor, and is an illustration of this class of case. The warrant of attachment was defective in that it did not bear the seal of the Court and the attachment was consequently illegal. It was held that the judgment-debtor and other persons who obstructed the peon and rescued the cattle which he attached had committed no offence u/s 186, I. P.C. It is therefore hardly necessary to examine this class of case. Nevertheless some passing observations may be made. Firstly, even in such cases it is not lawful for any person to offer to the peon more violence than is strictly necessary to resist the unlawful attachment and secondly, u/s 99, I. P. C.:

There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt if done or attempted to be done by the direction of a public servant acting in good faith under colour of his office though that direction may not be strictly justifiable by law.

This part of the section protects the public servant against the right of private defence even if the authority be defective in minor particulars or even if the officer exceeds his duty in a minor particular and it merely leaves the right of private defence open when the alleged authority is no authority at all and is wholly defective in form or the officer goes clearly and widely outside the duties imposed on him: see Queen Empress v. Poomalai Udayan v. If the authority has no defect the section has no operation see Queen Empress v. Janak Prasad [1886] 8 All, 293.

For the purpose of deciding this case I have to consider facts of a different nature. As I have pointed out a mistake was made by the executing Court in exercising its discretion to issue to the peons a warrant of arrest after it had already issued a notice for appearance and before the expiry of the term specified in the notice, nevertheless in the hands of the peon there was a warrant of arrest complete in itself and exhibiting no defect of form. It was the duty of the peons to execute that warrant and it was no part of their duty to ascertain whether the executing Court had properly exercised its undoubted legal discretion to issue that warrant. To hold otherwise would impose upon the peons a duty which to say the least of it would require the state to secure peons of a somewhat higher standard of education and to pay them a higher salary. The duty of an officer who goes to carry out the orders of the Court are limited to seeing that the orders are on the face of them within the power of the Court and that they exhibit no defect in form. Apart from this it is no part of his duty to review the discretion of the Court. Similarly it is his duty to carry out the orders given to him and not to go beyond such orders. It is of no use to the accused under these sections to criticise the action of the Court which issued the orders. I agree with the decision in Preo Lal Mukerji v. Emperor AIR 1914 Cal. 908.

In this case the apprehension of Puna Mahton by the peons was a lawful apprehension however mistaken the executing Court may have been in exercising its discretion to direct that apprehension and escape from and obstruction to that apprehension are unlawful acts u/s 225-B, I. P.C. Similarly u/s 353, I. P.C. the pushing by the accused persons of the peons not being justified in law was an assault. In my opinion the petitioners were rightly convicted and I dismiss their applications.